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CIRCULAR No

CIRCULAR No. 16/2000/TT-BXD OF DECEMBER 11, 2000 GUIDING THE CONSTRUCTION MANAGEMENT OF FOREIGN INVESTMENT ACTIVITIES AND THE MANAGEMENT OF FOREIGN CONTRACTORS UNDERTAKING THE CONSTRUCTION OR CONSULTANCY ON CONSTRUCTION OF PROJECTS IN VIETNAM

In furtherance of Article 112 of Decree No. 24/2000/ND-CP of July 31, 2000 of the Government, prescribing the responsibility of the ministries and branches for guiding foreign investment activities in the field of management; Performing its function of State management over construction prescribed in Decree No. 15/CP of March 4, 1994 of the Government, the Ministry of Construction hereby guides the management of the construction of projects with foreign direct investment capital, the management of activities of the construction organizations and construction consulting organizations set up under the Law on Foreign Investment in Vietnam and the management of foreign contractors undertaking the construction and consultancy on construction of works in Vietnam as follows:

I. MANAGEMENT OF THE CONSTRUCTION OF FOREIGN- INVESTED WORKS

1. Evaluation of the planning, architecture of construction works:

1.1. Objects of evaluation:

1.1.1. Investment projects under the Law on Foreign Investment in Vietnam with constructions must all be evaluated in terms of their planning and options on the work architecture in the course of evaluating the investment projects.

1.1.2. For foreign investment projects which only require the "registration for granting of investment licenses", the construction planning must satisfy the conditions prescribed at Point 1.b, Article 105 of Decree No. 24/2000/ND-CP of July 31, 2000 of the Government (on the projects� compatibility with the approved planning).

1.2. The evaluation contents:

1.2.1. The content of evaluating the construction planning covers the consideration of the compatibility of the preliminary design in the project dossiers with the planning certificate (for investment areas with detailed planning being already approved) or the written agreement on architecture and planning of the construction (for areas with detailed planning being not yet approved) according to the requirements prescribed at Point 4.2.5 of Article 42 of Chapter 4 of the Construction Standards, volume 1, promulgated together with Decision No. 682/BXD-CSXD of December 14, 1996 of the Minister of Construction.

1.2.2. The content of evaluating the scheme on work architecture covers the consideration of the compatibility of the preliminary design of the work in term of the option for the total ground arrangement, the spatial blocs complex, the architectures of the main frontages of the work, exterior decoration, the arrangement of landscapes with yards, gardens against the architecture, landscapes and environment in areas surrounding the work.

1.3. The dossiers to be submitted for evaluation of the work planning and architecture in the dossiers for project evaluation shall include:

1.3.1. The dossier of preliminary design of the work in conformity with the requirements stated in Clause I.A of Appendix 1 to the "Regulation on management of the quality of construction works", promulgated together with Decision No.17/2000/QD-BXD of August 2,2000 of the Minister of Construction.

1.3.2. The planning certificate or the written agreement on the work architecture and planning granted by the provincial/municipal Construction Services. Particularly for cases where works lie in industrial parks, export processing zones or hi-tech parks (hereinafter referred collectively to as industrial parks), the companies dealing in industrial park infrastructures shall extract the detailed planning of the construction land plot in the industrial parks on the basis of the detailed planning of the industrial parks, already approved in replacement of the planning certificate. The planning certificate or the written agreement on architecture and planning shall be made and granted according to set form.

1.4. Evaluating bodies:

1.4.1. The Ministry of Construction shall evaluate the planning and scheme of architecture of works of group A projects (excluding projects in industrial parks already with detailed planning).

1.4.2. The provincial/municipal Construction Services shall assist the provincial-level People�s Committees in evaluating the planning and scheme of architecture of works in group B project dossiers (excluding projects in industrial parks already with detailed planning).

1.4.3. The provincial-level industrial parks management boards shall evaluate the planning and architecture of works of investment projects in industrial parks already with detailed planning.

1.5. Evaluation of the planning and architecture for investment projects on industrial park infrastructure:

For the evaluation of investment projects on industrial park infrastructure, the evaluation of the planning and architecture means the evaluation of the design of the industrial park detailed planning submitted by the investors. According the provisions in Clause 3, Article 23 of Decree No. 36/CP of April 24, 1997, the Ministry of Construction shall be the body competent to evaluate and approve the industrial park detailed planning (except otherwise decided by the Prime Minister).

2. Evaluation of technical designs of works:

2.1. The content of technical design evaluation:

2.1.1. The legal status of the designing organization:

a/ For projects undertaken by Vietnamese designing and consulting organizations, the work designing and consulting organizations must have business registration for the designing services , granted by the Vietnamese State. For projects undertaken by foreign designing and consulting organizations, after being selected for the bid or winning the bid, the foreign designing and consulting organizations must make registration so as to be granted the permit to contract the construction consultancy as provided for in Section III of this Circular.

b/ The surveys in service of work designing (including topographical surveys, construction geological, hydro-geological and environmental surveys) must be carried out by Vietnamese surveying organizations with legal person status. Where the survey requires special techniques which cannot be performed by Vietnamese surveying organizations, the investors may select foreign surveying organizations for the job. Such foreign surveying organizations shall have to make registration at the Ministry of Construction so as to be granted the surveying permits.

2.1.2. The compatibility of the planning and architecture designs:

a/ Considering the compatibility in construction planning and architecture of the technical design with the project already evaluated when granting the investment license, the compatibility with the granted planning certificate or written agreement on architecture and planning. If the general ground planning and work architecture in the technical design see some changes as compared with the preliminary design, the contents of planning and architecture evaluation shall comply with the contents at Point 1.2 above.

b/ Where the technical infrastructures outside the work�s fences (to the outside of the land plot of the project) are neither available nor conformable with the work design, the investors shall have to draw up handling options and reach agreement with the specialized management bodies (according to the provisions in Article 103 of Decree No. 24/2000/ND-CP).

2.1.3. The compatibility of technical designs with the applicable standards and criteria:

a/ The work design shall be made according to construction standards and construction criteria of Vietnam. Where foreign standards shall be applied, such must be approved in writing by the Ministry of Construction.

b/ The evaluation of the observance of standards and criteria applicable to designing must be conducted for the written exposition of the design and drawings of the design dossiers, ensuring the conformity with the work grade, the conditions on work safety, fire and explosion prevention and fight safety and environmental protection.

2.2. Organizing the evaluation of technical designs:

2.2.1. Division of responsibility for design evaluation:

a/ The Ministry of Construction shall evaluate the technical designs of constructions under group A projects, excluding group A projects of small-size construction and installation( valued at below 10% of the total investment amount but not more than 10 million USD) and investment projects in forms of construction-operation- transfer (BOT) contracts, construction- transfer- operation (BTO) contracts and construction- transfer (BT) contracts.

b/ The Construction Services of the provinces and centrally-run cities shall organize the evaluation of technical designs of constructions under group B projects and group A projects of small construction and installation scale mentioned at Point a above, and submit them to the provincial-level People�s Committees for decision and approval of the designs (except BOT, BTO and BT projects).

c/ The State bodies competent to sign BOT, BTO or BT contracts shall assume the prime responsibility and coordinate with the Ministry of Construction, ministries managing specialized construction, the People�s Committees of the provinces and centrally-run cities with projects in evaluating the technical designs of works under the BOT, BTO and BT contracts.

2.2.2. Dossiers to be submitted for evaluation of technical designs:

The investors shall directly submit to the evaluating bodies (assigned at Point 2.2.1 above) 4 sets of design dossiers, each including:

a/ The application for design evaluation and for the permission to build the work (signed and stamped by the investor).

b/ Documents determining the legal person status of the work designing organization according to the provisions in Item 2.1.1 above).

c/ The conclusion on the evaluation of the work architecture planning and option in the period of evaluation for the granting of investment license.

d/ The technical design documents, including:

d.1. The general exposition of the work design, attached with data on climatic, geological, environmental surveys, other data related to design and the list of foreign standards used for designing, which have been approved by the Ministry of Construction, the list of software program used for designing the work;

d.2. The conclusion of the design inspection consulting organization (if any);

d.3. The drawings on the general ground and the general drawing on arrangement of technological chains;

d.4. The drawings on the overall work architecture, including: drawings on the ground, vertical sections, cross section of the work, drawings on main structures of foundation and body of the work;

d.5. Drawings on the general technical infrastructure system of the work and maps of connection to the common technical infrastructure work;

d.6. The planning certificate or written agreement on architecture and construction planning;

d.7. Valid copies of the decision on land lease or land lease contract or the land use right certificate, attached with extracts of land administration maps of 1/200-1/500 scale;

d.8. The copies of the investment license and written approvals of State management bodies for environment, fire and explosion prevention and fight;

d.9. The list of volume and criteria of special building materials of the project (according to design) which need to be imported into Vietnam.

2.2.3. When evaluating designs related to other specialized construction, the design evaluating body shall have to invite the ministry or provincial/municipal Service managing the specialized construction (and the industrial park management board if the work lies in the industrial park) to participate in the evaluation and making report according to set form.

The design evaluation results shall be the written decision to approve the technical designs and work construction, made according to set form by the evaluating body.

2.2.4. The already evaluated design dossiers must be stamped with the seals of competent bodies and assigned to the investor with two sets; one set shall be kept at the evaluating body, and one set shall be handed over to the local Construction Service (or the industrial parks management board if the project lies in the industrial park) for monitoring the implementation.

2.2.5. The time limit for evaluating the technical design of the entire work or according to each designing stage shall be 20 working days after the receipt of complete and valid dossiers. For incomplete dossiers as prescribed above, within 5 working days after the receipt of the dossiers, the evaluating body shall request the investor in writing to supplement the dossiers and the time for evaluating the design shall be prolonged correspondingly to the time needed for the supplement of the design.

2.2.6. The investors shall pay design evaluation fees to the evaluating bodies according to the regulations of the Finance Ministry.

2.2.7. If 12 months after the receipt of the decision on design evaluation and work construction the project still fails to get off the ground, such written decision shall no longer have effect for implementation. If needing to continue the work construction, the investor shall have to explain the reasons therefor in writing so that the evaluating body shall consider and permit the continued implementation or make re-evaluation. In the course of construction, the change in architecture, planning, main structures of the work as compared to the already evaluated designs shall be made only after it is approved by the design evaluating body.

2.2.8. The design evaluating bodies shall take responsibility before the State and law of Vietnam for their evaluation and decisions.

2.3. Deployment of the work construction

After receiving the decisions on design evaluation and work construction, issued by the evaluating bodies, the investors may proceed with the construction of the work according to the evaluated designs; or if past the time limit of 20 working days after submitting their dossiers of application for design evaluation (based on the dossiers receiving sheets), the design evaluating body still fails to notify its decision, the investor shall be entitled to proceed with the project construction according to the design dossiers already submitted. The investor shall have to notify the time of construction commencement 10 days in advance to the design evaluating body and the local administration (and the industrial parks management board if the work lies in the industrial park).

3. Examination of the performance of bidding in construction

Bodies competent to grant permits to contract the construction and construction consultancy shall examine the performance of bidding in construction when considering the granting of permits to foreign contractors under the provisions in Clause 3, Article 94 of Decree No. 24/2000/ND-CP of July 31, 2000 of the Government, including the following contents:

3.1. The legitimacy of the foreign legal person registered for the performance of the construction as compared with the document certifying the bidding results of the competent body under the Bidding Regulation.

3.2. The fulfillment of commitments by contractors according to bid evaluation results and the provisions of the Bidding Regulation.

4. Management of the quality of construction works:

4.1.1. The investors take responsibility before Vietnamese law for ensuring the quality of the work construction, safety and stability, fire and explosion prevention and fighting, environmental protection in the process of work construction as well as throughout the period of using the works.

4.1.2. The surveying or designing organizations, the construction contractors shall be responsible before the investors and Vietnamese law for their respective work and products relating to the work quality.

4.2. The quality of foreign-invested construction works (including works in industrial parks, works under BOT, BTO or BT contracts) shall be managed according to the provisions in Chapters 1,3,4 and 5 of the Regulation on Management of the Quality of Construction Works, promulgated together with Decision No.17/2000/QD-BXD of August 2,2000 of the Construction Minister, except for the contents relating to the State Council for Pre-acceptance Tests mentioned at Clause 3, Article 19 of such Regulation. Particularly for construction works under BOT, BTO and BT contracts, the State bodies competent to sign BOT, BTO or BT contracts shall have to organize their professional sections for participation in supervising the construction, pre-acceptance test of the work quality in the process of construction and pre-acceptance test upon the construction completion and work commissioning.

4.3. Upon the completion of the work construction (already tested before acceptance and putting the completed work to use), the investors shall report such to the competent design evaluating bodies (provided for at Point 2.2.1 above). The report shall be made according to set form. After making such reports, the investors may put the works to use. The investors shall have to fully bear the responsibility for the contents of the reports. In case of necessity, the bodies competent to evaluate the designs shall proceed with the inspection of the works; if any violation of the already evaluated designs or the provisions on construction is detected, the violator shall be handled according to law.

4.4. Within 6 months after the completion of work and the commissioning of the entire work, the investors shall have to submit dossiers on the completion of the work construction according to the State�s regulations on archiving documents and materials.

II. MANAGEMENT OF ACTIVITIES OF CONSTRUCTION AND CONSTRUCTION CONSULTANCY ENTERPRISES SET UP UNDER THE LAW ON FOREIGN INVESTMENT IN VIETNAM

After being granted the investment licenses, the construction and construction consultancy enterprises should ensure the business conditions according to law provisions as follows:

1. Enterprises operating in the field of construction, when conducting business activities in Vietnam, must fully meet the "construction business conditions" promulgated together with Decision No. 27/2000/QD-BXD of December 8, 2000 of the Construction Minister and abide by other law provisions relating to construction.

2. For construction consultancy enterprises conducting activity of designing construction works, one of the representatives of the legal person enterprise and the enterprise�s persons assuming the prime responsibility in design shall have to make registration at competent bodies so as to be granted the certificate of work designing practice according to the law provisions in "Regulation on granting certificates of work designing practice", promulgated together with Decision No. 23/2000/QD-BXD of November 13,2000 of the Construction Minister.

III. MANAGEMENT OF FOREIGN CONTRACTORS WHO ENTER TO CONTRACT THE CONSTRUCTION CONSULTANCY OR WORK CONSTRUCTION IN VIETNAM

Foreign contractors who enter Vietnam to contract the construction consultancy or project construction after winning bids or being selected as winning bidder under Vietnam�s Bidding Regulation, legislation on foreign investment in Vietnam or under the international agreements signed by the Vietnamese State, when conducting activities, shall have to follow the guidance in this Circular (except otherwise provided for by the Government or the international agreements which the Vietnamese State has signed):

1. General provisions

1.1. Foreign contractors, including construction consultancy contractors (including consultancy on management of construction project, survey, designs, examination of designs, inspection, management of construction quality and other construction consulting jobs) and the work construction contractors (hereinafter referred collectively to as contractors), when contracting to implement construction projects in Vietnam, shall all have to compile dossiers according to the guidance in this Circular so as to be granted permits for contracting the construction consultancy or project construction.

1.2. The permit for contracting the construction consultancy, the permit for contracting the work construction (called collectively the contracting permits) shall have granted to foreign contractors according to each contract. For the second contract on, if arising in the same year, the procedures to apply for the permits shall require only the application and other supplementary documents as compared with the dossiers submitted previously.

1.3. The contracting permits granted to foreign contractors shall serve as legal certificates for foreign contractors to perform the contracts on construction consultancy, for work construction and installation in Vietnam, and to contact Vietnamese State bodies in implementing relevant law provisions in Vietnam.

1.4. Upon receiving the contracting permits, foreign contractors shall have to pay fees according to the regulations of the Finance Ministry.

2. Dossiers of applying for contracting permits for construction to be submitted by foreign contractors shall include 1 set of originals and 3 sets of copies; the set of originals include:

2.1. The application for contracting permit for work construction (made according to set form)

2.2. Copies of the reports on bidding process, bid evaluation and bidding results, made by investors and documents certifying the bidding results, issued by competent bodies or the investors� decisions on lawful selection of bidders.

2.3. Copies of project investment licenses granted by competent bodies or investment decisions for State-funded projects or construction permits for projects not financed by the State.

2.4. Certificates of foreign contractors� legal person status: The founding permit and the company�s charter (or business registration paper) and professional practice certificates granted to contractors by their home countries (copies notarized in the host countries or certified by competent diplomatic missions of Vietnam or the host countries).

2.5. The contracts on joint ventures with Vietnamese contractors or written commitment to use Vietnamese subcontractors as provided for in the Regulation on Bidding of Vietnam.

3. The dossiers of application for permits to contract for construction consultancy submitted by foreign contractors with 01 set of originals and 03 sets of copies. The set of originals includes:

3.1. The application for the permit to contract for construction consultancy (according to set form).

3.2. The copies of the investor�s report on bidding evaluation and results; the competent body�s written certification of the bidding results; or the investor�s decision on selection of bidder.

3.3. The copies of project investment license granted by competent body or investment decision for State-funded projects or construction permit for projects not financed by the State.

3.4. The foreign contractor�s legal person status certificate of construction consultancy granted in the host country (notarized copy); the declaration of working experiences in work designing.

4. Organizations to grant contracting permits:

4.1. The Construction Ministry shall consider and grant contracting permits to foreign contractors who execute construction and installation bidding packages of group A projects with value of USD 10 million or more and construction consultancy bidding packages with value of USD 1 million or more (works with foreign investment capital or works with domestic investment capital); and to cases not falling under the provincial/municipal Construction Services� competence to grant contracting permits as prescribed at Point 4.2 below.

4.2. The provincial/municipal Construction Services shall grant contracting permits to foreign contractors who execute bidding packages of group B projects (works with foreign investment capital) and group B-C projects (works with domestic investment capital) in the provinces and small bidding packages of group A projects, with value lower than the levels prescribed at Point 4.1 above.

4.3. Within 5 working days after the receipt of dossier of application for contracting permit, if deeming that the dossier is incomplete or invalid, the permit-granting body shall request the contractor to supplement the documents. The consideration and granting of permits to foreign contractors shall be effected within 20 working days after the receipt of valid dossiers.

The contracting permits for construction and construction consultancy granted to foreign contractors shall be made according to set form.

5. Things to be done by foreign contractors after being granted the contracting permits:

5.1. Registering the transaction addresses, telephone numbers and fax numbers in Vietnam and their lawful representatives with the People�s Committees of the provinces or cities where exist the works and notifying the Construction Ministry and local Construction Services (and the industrial park management boards if the works lie in the industrial parks) thereof. Re-registering any change, if any, and making notification as prescribed above.

5.2. Strictly abiding by the provisions of Vietnamese laws on investment and construction management.

5.3. Observing the provisions in the contracting permits, abiding by other Vietnamese legislation related to contracting activities in Vietnam.

5.4. Reporting once every six months and upon the contract termination on activities under the granted contracting permits to the Construction Ministry and provincial/municipal Construction Services (according to set form).

IV. ORGANIZATION OF INSPECTION AND IMPLEMENTATION

1. Organization of inspection:

1.1. Basing themselves on the division of responsibility in this Circular, the Construction Ministry and the provincial/municipal Construction Services shall organize the inspection of the construction of foreign-invested works, the operation of foreign-invested enterprises dealing in construction and construction consultancy and the annual inspection of the activities of foreign contractors. When conducting the investigation, they must notify the investment licensing bodies thereof for coordination.

The extraordinary inspection shall be conducted when a contractor is detected with signs of violating the legislation on construction, when there are complaints of parties involved in the work construction or when occur project incidents; the inspecting bodies must conduct the inspection and handle the cases strictly according to the procedures prescribed by law.

The investors and the contractors shall have to create favorable conditions for the inspecting bodies to well perform their function.

1.2. All activities of arbitrary investigation in contravention of the provisions at Point 1.1 above, which cause troubles to the process of work construction are strictly forbidden. All acts of abusing one�s inspecting powers to cause troubles to investors and contractors shall be strictly handled according to law.

1.3. Within 10 days after the inspection, the inspecting bodies shall have to make reports thereon and send them to the Construction Minister, the Minister of Planning and Investment and the presidents of the People�s Committees of the provinces (where exist the works) for awareness and handling when necessary.

1.4. Once every six months, the provincial/municipal Construction Services shall report to the Construction Ministry on the granting of contracting permits for construction, the situation on the construction of foreign-invested works in their localities.

2. Organization of implementation:

2.1. This Circular takes effect 15 days after its signing for promulgation and replaces Circular No. 01/BXD-CSXD of April 15, 1997, Circular No. 03/1998/TT-BXD of June 12, 1998 of the Construction Ministry guiding the management of the construction of projects with foreign direct investment capital, undertaken for construction in Vietnam by foreign contractors and replaces Circular No. 02/1998/TT-BXD of April 29, 1998 of the Construction Ministry guiding the operation registration by enterprises involved in construction or construction consultancy with foreign direct investment capital in Vietnam.

2.2. The competent State bodies shall organize the implementation according to the provisions in this Circular. If in the course of implementation problems arise or new matters are detected, they shall be reported to the Construction Ministry for timely study and solution.

Construction Minister
NGUYEN MANH KIEM